SAS Webuihoone Maritime, known as Sowemar, the sole partner of SAS Transwebuihoone, known as Transweb, sold all its shares for a symbolic franc to SCP Royal South Klang Marine, whose manager, Mr F, was also manager of Transweb. By an agreement of February 22, 2018, Transweb agreed to pay Sowemar a sum of XPF 20,000,000 within 20 months. Transweb defaulted. On 18 May 18 2020, Sowemar sued Transweb in the mixed Commercial Court of Nouméa for XPF 84,568,381.

On 28 November 2022, Sowemar obtained authorisation to carry out a precautionary seizure of the vessel Belyd for the purposes of guaranteeing the payment of XPF 84,568,381. On 2 January 2023, the precautionary seizure was effected. On 27 January 2023, Transweb sought the release of the vessel. By interim order of 30 May 2023, the interim Judge at the Nouméa Mixed Commercial Court ordered the release of the vessel. Sowemar appealed.

Held: Appeal upheld. The ship arrest is to be maintained.

The Arrest Convention 1952 authorises the seizure of a ship when:

• the claim is a 'maritime claim' within the meaning of art 1 of the Convention, which defines a maritime claim as 'a claim arising out of one or more' of the causes listed in the article, including in particular 'goods or materials wherever supplied to a ship for her operation or maintenance' (art 1.1.k), and also 'construction, repair or equipment of any ship or dock charges and dues' (art 1.1.l); and
• this maritime claim relates to the vessel whose seizure is requested (art 3.1).

Thus any ship under this international Convention may be seized on the simple allegation of the existence of a maritime claim appearing in the exhaustive list in art 1, without having, as it stands, to justify the existence of this debt.

Article 8 of this Convention provides that:

(1) The provisions of this Convention shall apply to any vessel flying the flag of a Contracting State in the jurisdiction of any Contracting State.

(2) A ship flying the flag of a non-Contracting State may be arrested in the jurisdiction of any Contracting State in respect of any of the maritime claims enumerated in article 1 or of any other claim for which the law of the Contracting State permits arrest.

(3) Nevertheless any Contracting State shall be entitled wholly or partly to exclude from the benefits of this convention any government of a non-Contracting State or any person who has not, at the time of the arrest, his habitual residence or principal place of business in one of the Contracting States.

(4) Nothing in this Convention shall modify or affect the rules of law in force in the respective Contracting States relating to the arrest of any ship within the jurisdiction of the State of her flag by a person who has his habitual residence or principal place of business in that State.

(5) When a maritime claim is asserted by a third party other than the original claimant, whether by subrogation, assignment or other-wise, such third party shall, for the purpose of this Convention, be deemed to have the same habitual residence or principal place of business as the original claimant.

However, even if the Arrest Convention 1952 imposes itself on domestic law in the name of the superior effect of treaties in the hierarchy of norms, the fact remains that it is erased in favor of the internal law of the State welcoming the ship into one of its ports if there is no foreign element. Indeed, if the place of arrest, the flag of the vessel and the residence where the main establishment of the arrestor is located, are attached to the same signatory State, it is the local domestic law of this State which must apply. Here, the Court notes that the arrested vessel Belyd flies the French flag, and the parties involved have their registered offices in different locations. Thus, pursuant to Article L 5114-22 of the Transport Code, 'any person whose claim appears to be founded in principle may request authorisation from the judge to carry out a precautionary seizure of a ship'.

Since it appears that the maritime claim of Sowemar is founded in principle, and that it is liquid, certain and payable, the decision at first instance will be reformed in all its provisions. Consequently, the Court maintains the disputed protective seizure ordered on 2 January 2023 by the President of the Mixed Commercial Court of Nouméa, for security and conservation and for payment of XPF 84,568,381.